Citation: [1999] NSWCCA 414
Court: New South Wales Court of Criminal Appeal
Date: 10 December 1999
Judge(s): Newman J, Beazley JA, Greg James J
Background
The applicant pleaded guilty in the District Court at Parramatta to maliciously inflicting actual bodily harm with intent to have sexual intercourse, contrary to section 61K(a) of the Crimes Act 1900. The offence occurred on a train in the early hours of 21 September 1997, when the applicant pursued a female passenger between carriages, covered his face with a modified bandanna, and violently attacked her in an attempt to commit sexual intercourse without consent. The victim's sustained resistance and the train's arrival at Burwood station prevented the completion of the offence.
The District Court, presided over by Karpin DCJ, imposed a total sentence of eleven years, comprising a minimum term of six years penal servitude and an additional term of five years. Two common assault charges (arising from an altercation with passengers who restrained the applicant after he fled the station) were taken into account on a Form One.
The applicant sought leave to appeal that sentence to the Court of Criminal Appeal, arguing it was imposed in error and was manifestly excessive.
Legal Issues
- Whether the sentencing judge applied the correct standard of proof (beyond reasonable doubt) when finding that the applicant had a dangerous propensity to prey on women.
- Whether the discount given for the applicant's guilty plea was inadequate, particularly in a sexual assault matter where the plea spared the victim from giving evidence.
- Whether the total sentence of eleven years was manifestly excessive in the circumstances.
Decision
On the first ground, the court rejected the argument that the sentencing judge had applied an incorrect standard of proof. The applicant's criminal history, which included two prior violent sexual assaults committed in 1990 for which he had received a ten-year sentence, provided ample basis for the finding of dangerous propensity. The court found nothing in the remarks on sentence to indicate that the judge had departed from the standard required by R v Veen (No 2).
On the second ground, the court rejected the submission that a substantial discount for a guilty plea is automatic in sexual assault cases simply because it spares the victim from giving evidence. While such a consideration is relevant to the exercise of sentencing discretion, the court confirmed it carries no mandatory weight. The court also dismissed as fanciful the suggestion that, had the matter proceeded to trial, the jury might have returned a verdict on a lesser charge rather than the section 61K(a) offence.
On the third ground, the court declined to find the sentence manifestly excessive. The applicant was on parole at the time of the offence for two earlier violent sexual assaults. Expert evidence from a neuropsychologist and a forensic psychiatrist identified a significant risk of reoffending. The sentencing judge had approached the task with care, and the court found the sentence appropriate given the aggravated circumstances and the need for specific deterrence.
Leave to appeal was granted given the significance of the matter to the applicant, but the appeal was dismissed.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A finding that an offender has a dangerous propensity to reoffend must be supported by proof to the requisite standard, but a substantial prior history of similar offending can provide sufficient evidentiary foundation for such a finding at sentencing.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a guilty plea in a sexual assault matter does not automatically entitle the offender to a substantial sentencing discount, even where the plea spares the victim from giving evidence; it remains one factor among many.
- Where expert psychiatric and psychological evidence identifies a significant risk of reoffending, a sentencing court may properly treat specific deterrence as a weighty consideration, even where the offender's psychological difficulties might otherwise reduce the weight given to general deterrence.
- Offending committed while on parole for prior offences of a similar character is a seriously aggravating factor that can justify a sentence at the higher end of the range.
- Judicial Commission statistics indicating that an offender received the highest sentence within a category do not, without more, establish that the sentence was manifestly excessive; the particular circumstances of each case must be assessed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61K(a), 114(1)(c)
Cases
- R v Veen (No 2) (1987-88) 164 CLR 465
- R v Bennetts, unreported, NSW Court of Criminal Appeal, 17 June 1993
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Siganto (1998) 73 ALJR 162